The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1887-04-13
GONE TO TIE TWELVE.
THE fALBerf CASE IN THR
HANDS OF THE JURY.
Judge DuBese's Charge-An Ex-
halstive and Complete Review
OF the Law Points.

ease Yesterday morning, and Attorney
General Peters closed at $3.50 o'clock
In the afternoon. Judge DuBose then
charged the Jury as follows:
State Of TsAasase vs.. Charles Talbstt-
ChAfsei
The indictment on which defendant
is being tried contains two counts
one charging larceny and the other
fraudulent breach Of trust, both OF
which are distinct felonies. Larceny
rs the felonious taking and carrying
away the personal goods Of another.
A fraudulent appropriation OF prop
eity by any person to whose charge or
care ID Ia delivered subject to the inn
mediate orders Of the owner or TO the
use Of Il in his presence or for the
purpose OF bis trade is lsrceny and is
either grand or petit. Grand larceny
lie the felonious taking and carrying
AVA personal goods over the value OF
$50. Petit larceny Of goods not ex.
eeeding $50 in value. 1t 10 essential
70 the crime Of larceny that the taking
or appropriation OF the properly
should be against tho will OF the
owner, and the original taking or APP
propriatloh must be in such manner
as TO constitute q trespass. Trespass
h an unlawful act committed with vio-
lence 10 the person, property or rela-
tive rights Of another. Where the
delivery Of goods Is made for q certain
special aud particular purpose the
possession In a legal sense remains In
the FIRST proprietor. Thus, where a
person to whom goods are delivered
has only the charge or custody Of
them, such person may commit lar
ceny by q fraudulent conversion OF
the property to his own use. The
owner 10 such case intended TO part
with the Temporary charge or custody
for a limited and specific purpose, re-
tanning the Ownership in himself. To
constitute the crime OF larceny a felo-
NOUS or fraudulent intent 10 neces-
sary--it Is the essence OF the crime.
That Is, the taking must be for the
purpose OF stealing the goods. The
taking must also be for the sake OF
gain, aud without the least color OF
right or excuse for the act, and with
the intent to deprive the owner not
Will " i1lily pub HOAAAS AAChtiy vi ilio
property. II the proof show that de-
iendsnt, az clerk Of the Gayoso Hotel,
received the property or any part OF 1t
described in the indictment, or In
other words that II wal delivered into
his charge or care subj ect to the i'm
mediate orders OF the prosecutor, who
Is the owner, and he fraudulently APP
propriGted 1t to his own use, he would
be guilty OF larceny, for In q legal
the possession OF the property
rsmailed with the prosecutor, and
while thus In the custody OF the de-
iendant he iraudulently appropriated
1t he committed O trespals by taking
1t against the will Of the owner, and
all the essentials OF the crime OF lar.
oeny are made out. That Ia TO say,
the trespass was committed, the fraud
ulent appropriation OF the properly or
goods, With tina intent to deprive the
owner not temporarily (it such was q
iact), but permanently, OF the prop.
erty. II the taking, though wrongful,
was not fraudulent, the act was
not larceny, but was only a tres.
pass, aud ought to be so regarded
By the jury, who alone are to find
intent upon the consideration oil
oil the facts and circumstances
OF the case. Thus IL IL should
appear that the defendant took the
prosecutors goods openly, In his pres
ence or In the presence OF other per-
Sons, a7d not by robbery or having
them In possession, avowed the fact
before he was questioned concerning
them, or took them for temporary use
and afterwards returned them to the
same plsss and promptly informed the
owner oil the fact, these circumstances
would be- pregnant evidences to the
jury that the taking was without a
ielonious intent, and therefore but a
mere trtspass, aud the defendant
would moi be guilty Of the crime Of
larceny. II 10 incumbent on the State
to make on. to your satisfaction, be-
You'd a reasonable doubt, that the
crime Of larceny was committed that
II was committed in tho county OF
Shelby and Safe Of Tennessee; that
defendant committed the larceny Of
the goods described 10 the indictment,
and that the prosecutor or his wife
had q general or special property In the
same.
The fraudulent appropriation Of per.
sonal property or money by any one
TO whom 1t has been delivered on de-
posit, pledge, sGquestration or to be
carried or repaired, or in whose hands
or under whose control it may be b.
his position as clerk, agent, factor OF
bailee, or on any other contract or
trust by which he was bound to do.
liver or return the thing received OF
is proceeds, is a fraudulent breach OF
trust. To constitute this otfense there
must have been a receiving with in
tent TO comply with the contract
under which the delivery is made
and n subsequent determine.
ton Of fraud. II the contract
be used merely "a the means of pro.
curing POSSESSION with an intent to
make a fraudulent appropriation II Ia
larceny. The giving to another the
charge or car Of property subj ct 10
the immediate orders of the owner is
not q delivery within the meaning oil
the description Of breath Of trust. A
fraudulent appropriation OF property
% delivered is larceny.
The defendant has presented his
plea Of former conviction and relies
upon the same rs a defense to this in,
dictment, aud II sustained by the
proof would be a complete defense Ia
the charge in the indictment, and II
would be your duty to acquit him
Our constitution provides that no per,
son shall for the same offense be twice
pat in jeopardy Of life or limb
To sustain this plea the proof mus
show that the ofiense cha ged in THU
indictment was committed at thetamC
time and the same place az tina
charged In the former indictment anC
on which defendant was convicted
and was in fact one aud the sam,
bansactiOp, although different articles
Of difierent values may have beer
stolen. IT, however, the property de
scIibed in the former Indictment, OF
which defendant was tried and con
victed Of larceny, was the property o
q different person from that one name,
in the indictment on which he ia nov
hainO tYiad ADD waa in n dinatan